Using QEEG Test Results in Brain Injury Claims – Bialkowski v. Banfield

by John McKiggan“Novel” Science in the Courtroom

In 1994 the Supreme Court of Canada in the landmark decision R v Mohan settled the following general criteria for the admissibility of expert opinion evidence:

1) The evidence is relevant to some issue in the case;

2) the evidence is necessary to assist the trier of facts;

3) the evidence does not violate an exclusionary rule; and
4) the witness presenting the evidence is a properly qualified expert.

In R.J.D.D. the Supreme Court issued a warning about the wholesale admission of expert evidence. The SCC established the role of the court as one of “gatekeeper” for the admission of novel expert evidence.

I have posted before about the difficulties in proving brain injuries and some of the myths associated with minor traumatic brain injury: What is a Mild Traumatic Brain Injury? and 8 Myths of Traumatic Brain Injury

New Advances in Brain Injury Research

As medical science advances and new tools and tests are being created which help medical professionals diagnose potential brain injuries. See for example Brain Injury Claims: New Blood Test May Help Brain Injury Victims

However, whether or not those tools and tests can actually be used in court to prove the existence of brain injury is open to debate.

Brainwaves Reports Not Admissible

A recent decision from British Columbia addressed the admissibility of QEEG reports in a brain injury claim. QEEG stands for “Quantitative ElectroEncephaloGram”. It is a digital measurement of electrical patterns at the surface of the scalp which primarily reflect cortical electrical activity in the brain. Put simply, a QEEG maps “brainwaves.”

In Bialkowski v. Banfield the court ruled that while QEEG reports may be admissible in appropriate case the plaintiff in that case did not provide sufficient evidence to establish the reliability of the evidence.

Justice Bracken ruled the plaintiff’s neuropsychologist was not properly qualified to introduce the QEEG evidence.

The relevant findings are as follows:

[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain. Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head. The electrical activity is then recorded either on paper, or digitally on a computer. The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique. It uses computer assisted analysis of EEG tests. The raw EEG data is digitized and analyzed by means of a mathematical algorithm. It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis. Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis. In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan. I conclude it will not assist the trier of fact. As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future. As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible. Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders. …

Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert. QEEG does not meet the requisite reliability threshold and is still novel science.

Door Still Open?

The ruling leaves open the possibility that properly qualified experts, for example neurologists, could introduce evidence in the appropriate cases.

Want more information about Brain Injury Claims?

Contact me through this blog and ask for a free copy of my latest book, Brain Matter: The Survivor’s Guide to Brain Injury Claims (How to prove the invisible injury).

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But if you live in Atlantic Canada, you can get a free copy of the book by contacting me through this blog (be sure to put “Brain Matter” in the subject line).

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